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On-call work and working time in the employment contract according to § 12 TzBfG
With the entry into force of the new version of Section 12 Part-Time and Temporary Employment Act (TzBfG) on January 1, 2019, the legislature made extensive changes with regard to on-demand work. The background to this is that employees who do work on call should have more planning and income security.
Availability of on-demand work
In order for § 12 TzBfG to apply at all, on-demand work must be agreed. An on-call employment relationship within the meaning of § 12 TzBfG exists if in the employment contract the length of working hours only on based on a certain period of time so that the employer can decide how much work he wants to take on which day.
In the case of on-call employment, a fixed hourly wage is agreed, as is the number of hours worked per week. It is up to the employer whether he wants to call up the work performance. According to Section 12 (3) TzBfG, the employer must ensure that the employee is only obliged to work if the employer gives him the days of his working hours at least four days in advance notifies.
Requirements for the on-call employment relationship
However, that does not mean that the employer can completely do without a workforce in one week. According to Section 12, Paragraph 2, Clause 2 of the TzBfG, a Only up to 20 percent less than the agreed minimum working time. In case of a agreed maximum working hours According to Section 12 (2) sentence 1 TzBfG, he may only 25 percent of the weekly working time more recall.
If no number of hours has been agreed, according to Section 12 Paragraph 1 Clause 3 TzBfG the Fiction of 20 hours a week. For the employee, this means that he must be employed at least 16 hours and a maximum of 25 hours a week.
With the new version of § 12 TzBfG, the legislature wanted to ensure that employees on the one hand do not have a large loss of wages and on the other hand not considerably more hours have to perform on-call as agreed.
In addition, it should be noted that, in accordance with Section 12 (1) sentence 4 TzBfG, the employer is responsible for the employee's work for at least three consecutive hours if the duration of the daily working hours is not specified.
Has the employee in the past regularly more than 20 hours worked per week and / or significantly more than three hours a day, the presumption of § 12 para. 1 sentence 3 TzBfG does not apply, as this would be detrimental to the employee.
Even if employees regularly do their work on different days as part of shift work, this is the case not an on-call employment relationship. At least when it comes to full-time employees. Accordingly, § 12 TzBfG does not apply.
Applicable to full-time employees
Before the amendment to § 12 TzBfG, it was disputed whether the corresponding regulations also apply to full-time employees. The dispute is still up to date, since the legislature has made no statement on this. Full-time employees differ from part-time employees only in that their working hours are usually between 35-40 hours per week.
Even if in practice the majority of full-time employees spend an evenly distributed work performance over the week, practice shows that this does not affect all full-time employees.
The different classification means that if the application of § 12 TzBfG to full-time employees is affirmed, the employer must also inform them at least four days in advance about the work assignment in accordance with § 12 Paragraph 3 TzBfG.
The amendment of § 12 TzBfG should not only serve the income security to the effect that the employer has a relatively stable income per month, but also the planning security. This is only consistently guaranteed if all employees on call - including full-time employees - are included in the scope of § 12 TzBfG.
Special case mini job
The new version of § 12 TzBfG has also led to uncertainty among employers and employees. This applies in particular to employees on a € 450 basis, for whom no precise working hours have been specified, so that, from a legal point of view, on-call work is available.
According to the old legal situation, this was not a problem, since Section 12 (1) sentence 2 TzBfG (old version) assumed a weekly working time of ten hours in the absence of an agreement. In the case of payment according to the minimum wage, which in 2015-2020 was between € 8.50 and € 9.35, the employee regularly stayed below the social security-free limit of € 450.
Since the new version of Section 12 (1) sentence 3 TzBfG assumes 20 working hours per week, the original mini-job will be converted into a job subject to social insurance because the € 450 limit is exceeded. As a result, a social security obligation can be determined retrospectively as part of the tax audit. The employer then has to pay social security contributions based on the fictitious 20 working hours.
With the new version of § 12 TzBfG, the legislature has given employees who work on demand more security.
With the 20-hour fiction, on the one hand, the excessive exceeding of the previously assumed ten weekly working hours is compensated. On the other hand, the legislature has adopted the limits previously set by case law of 25 percent additional minimum working time or 20 percent less maximum working time. This means that the employer can no longer employ his employees below or above the agreed number of hours at will.
If you as an employer have made an effective agreement on weekly working hours, you will not be affected by the changes.
We would be happy to advise you in this regard!
- Unless otherwise agreed, a fiction of 20 working hours per week applies in accordance with 12 para. 1 sentence 3 TzBfG.
- If no daily working hours are specified, the employer must employ the employee for at least three a day in accordance with 12 para. 1 sentence 4 TzBfG.
- According to 12 para. 3 TzBfG, the employee must inform the employee at least four days in advance of the start of his call work.
- With an agreed minimum working time, the employer may call up a maximum of 25 percent more in accordance with 12 para. 2 sentence 1 TzBfG.
- If a maximum working time has been agreed, the calling of the work performance may fall short of this by a maximum of 20 percent in accordance with Section 12 (2) sentence 2 TzBfG.
Help with labor law issues:
Which errors in a works agreement are significant, lead to ineffectiveness or, if necessary, can be subsequently cured, as well as the question of the legal consequence, depends on the individual case. We would be happy to advise you on all aspects of collective labor law and all commercial law issues.Dr. Patrizia Antoni is a specialist lawyer for labor law and a specialist lawyer for tax law. She will be happy to advise you on all labor law and tax law issues.
Contact us without obligation and make an appointment in the offices of AHS Rechtsanwälte in Cologne or Bonn, or by phone.
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